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EXHIBIT 10.42
EMPLOYMENT AGREEMENT
BETWEEN
BIORELIANCE CORPORATION
AND
XXXX X. XxXXXXXX, Ph.D.
THIS AGREEMENT, effective the 2nd day of December, 1999, by and between
BioReliance Corporation, a Delaware corporation, with principal offices located
at 00000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000, and all of its subsidiary
companies and its successors or assigns (the "Corporation") and Xxxx X.
XxXxxxxx, Ph.D. (the "Executive").
Preliminary Statements
WHEREAS, the Executive is currently employed by the Corporation;
WHEREAS, the parties desire to provide for the continued employment of
the Executive by the Corporation on the terms and conditions set forth in this
Agreement; and
Terms and Conditions of Agreement
NOW THEREFORE, in consideration of the mutual promises and agreements
set forth in this Agreement, the adequacy of which are acknowledged, and with
the intent to be bound hereby, the Corporation and the Executive agree as
follows:
A. POSITION
The Executive will be employed as Vice President, U.S. Testing and
Development of the Corporation commencing with this Agreement. The Executive
shall continue as Vice President, U.S. Testing and Development, or such other
senior management position as may be determined by the Corporation from time to
time, through the remainder of the Term.
B. DUTIES
As Vice President, U.S. Testing and Development, the Executive shall
perform such duties as may be assigned to him from time to time by the President
and Chief Executive Officer of the Corporation (the "CEO"), including, but not
limited to: developing and documenting novel or typical testing or development
programs, procedures, methodologies and the like; engaging clients for the
Corporation's testing and development services; designing major projects;
writing project plans; closing key proposals; directing projects of significant
scale and scope; directing complex technical activities; solving challenging
technical, regulatory
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and service problems; building client relationships; and anticipating follow-on
client engagements.
C. TERM
The terms and conditions of this Employment Agreement will cover a
period beginning as of the date hereof and ending on January 1, 2000 (the
"Term"), unless otherwise terminated as provided in Section E below. During the
Term of this Agreement, the parties acknowledge that the Executive's employment
is not "at will" employment, and the Corporation's obligation to pay the
Executive the compensation described in Section E of this Agreement shall exist
regardless of any decision by the Corporation to terminate the Executive's
employment for any reason (other than a termination for cause) prior to the
expiration of the Term. At the end of the Term of this Agreement, the
Executive's employment status shall terminate. The terms and conditions
contained in Section E of this Agreement will expire at the end of the Term.
D. EXTENSION OF TERM
The Term of this Agreement may be extended in three (3) month
increments upon mutual, written agreement of both parties.
E. COMPENSATION AND BENEFITS
(i) Base Salary
The Executive's annual base salary will be One Hundred and
Eighty-Five Thousand Dollars ($185,000), payable on the Corporation's
regular bi-weekly payroll basis. The Executive shall receive only that
portion of the base that will become due during the Term, and not the
total annual base salary.
(ii) Bonus
If the Executive remains in the employ of the Corporation
through January 1, 2000, the Executive shall be paid a bonus of Ten
Thousand Dollars ($10,000), less applicable withholdings and deductions
(if any), without appraisal, on January 31, 2000. The Corporation will
be obligated to pay the Executive this bonus as long as the Executive
(a) does not resign from the Corporation before January 1, 2000 and (b)
is not terminated for Cause (as hereinafter defined) on or before
January 1, 2000.
(iii) Incentive Stock Options
As an inducement to remain in the employ of the Corporation
and as an incentive to build the Corporation's value, if the Executive
remains in the employ of the Corporation through January 1, 2000, the
Corporation will fully vest any Incentive Stock Options previously
granted as of January 1, 2000, and the
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Executive will retain all rights and obligations pertaining thereto in
accordance with the terms of the applicable plan. The Corporation will
be obligated to fully vest any Incentive Stock Options previously
granted as long as the Executive (a) does not resign from the
Corporation before January 1, 2000 and (b) is not terminated for Cause
(as hereinafter defined) on or before January 1, 2000.
(iv) Other Provisions
The Corporation will provide such medical and other insurance
coverage to the Executive as the Corporation makes available to all
employees generally from time to time. Eligibility to extend group
health coverage beyond the Term for the Executive or any dependants may
be exercised by signing the applicable COBRA agreement.
The Executive will receive the Corporation's standard
vacation, sick time and personal holiday benefits during the Term. The
Executive will continue to accrue Paid Personal Leave (PPL) through the
Term of this Agreement, and any unused PPL will be due to the Executive
upon termination of employment.
The Corporation will provide the Executive with appropriate
office space as it deems necessary, and will provide telephone,
computer and email access as required to perform his duties during the
Term of this Agreement.
F. TERMINATION COMPENSATION AND BENEFITS
In the event that during the Term of this Agreement, the Executive's
employment with the Corporation is involuntarily terminated by the Corporation
other than for Cause or because of the Executive's death or substantial
inability to work, the Corporation will pay the Executive a lump sum payment
equal to all amounts that would have otherwise become due hereunder, including
without limitation the Bonus described in Section E (ii) and the Corporation
will vest the incentive stock options in accordance with Section E (iii) hereof.
For a period of six (6) months after such termination, the Corporation
will also continue to make available the same health and dental (but no other)
benefits made available to Corporation employees generally at a cost equal to
the cost the Executive would have paid if he had continued to be an employee of
the Corporation. In the event the Executive becomes employed at any time during
the six (6) month continuance period, all remaining health and dental benefits
shall terminate as of date of hire by the Executive's new employer.
If the Executive terminates his employment prior to the end of the
Term, the Corporation shall have no further obligations under Sections E or F
hereof after the effective date of termination.
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As used in this Agreement, "Cause" shall mean that the Executive (a)
committed a material act or material acts of personal dishonesty intended to
result in the Executive's personal enrichment at the expense of the Corporation,
and which constitute(s) fraud, grand larceny or any felonious act, (b) failed or
refused to perform the Executive's material duties and obligations as an
employee of the Corporation (other than due to disability or reasons beyond the
Executive's reasonable control) if such failure or approval is not remedied
within a reasonable period of time following the Executive's receipt of notice
thereof.
G. RELEASE
The Executive acknowledges that absent this Agreement, he has no right
or entitlement to any separation payment and benefits, or to a separation
allowance in any particular amount. In consideration of the payment to him of
the monies and other benefits set forth herein, the Executive, on behalf of
himself and his heirs, executors, administrators and assigns, hereby releases
and discharges BioReliance, its agents, employees, successors, assigns,
affiliates, subsidiaries, officers, and directors, and each of them, from any
and all real or pretended claims, demands, rights, liabilities, damages,
injuries or causes of action whatsoever, known or unknown, including but not
limited to, claims and demands relating to salary, compensation, pension or
retirement plans (except as to rights which already may have vested, which
rights are specifically reserved hereunder), bonuses, incentive compensation,
commissions or any other form of compensation or perquisite, personal injury,
bodily injury, defamation, unlawful interference with contract rights or
business advantage, and any claims under the Age Discrimination in Employment
Act of 1967, or under any other federal, state, or local law prohibiting
employment discrimination (including, but not limited to, the Executive's right
to make a claim in his own right or through a suit brought by a third party on
his behalf), and any or all claims which he ever had or now has directly or
indirectly, arising out of his employment relationship with BioReliance or the
ending of that employment relationship with BioReliance, and all said rights,
actions, claims, demands, judgments, and executions are hereby satisfied in
full, terminated and forever discharged.
By granting this Release, the Executive acknowledges that this
Agreement in no way constitutes an admission by BioReliance of any violation of
law, breach of contract or any wrongdoing whatsoever towards him.
Upon termination of the Executive's employment, and as a condition to
the initiation of a Professional Services Agreement, if any, the Executive will
be requested to sign a release covering the period from the date hereof until
January 1, 2000.
H. CONFIDENTIALITY AND NONCOMPETITION
By signing below, the Executive acknowledges his ongoing and continuing
obligation to abide by the Confidentiality, Trade Secrets and Noncompetition
Agreement that he executed on June 23, 1998 ("Trade Secrets Agreement"), and to
keep secret or confidential, and not to utilize in any matter or disclose to
third parties, any proprietary
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and confidential information of the Corporation, which may have been made
available to him or came into his possession during the period of his employment
with the Corporation, nor will the Executive compete with the Corporation nor
solicit its (i) current or prospective employees for employment elsewhere or
(ii) current or prospective customers. The Corporation and the Executive
acknowledge that the noncompetion provisions of Section 4 (i) of the Trade
Secrets Agreement are not intended to prevent the Executive from seeking or
accepting employment from a customer or client of BioReliance provided that the
customer or client does not provide competing services to third parties. The
provisions of Section 4 (ii) and 4 (iii) of the Trade Secrets Agreement shall
apply in all events.
The Executive also agrees that, during and after the Term, he shall not
make any defamatory or disparaging comments about the Corporation, its agents,
employees, successors, assigns, corporate parent, subsidiaries, affiliates,
officers, or directors to third parties, or to former, present, or prospective
customers, clients, vendors, business associates or anyone else in the industry,
and shall not unlawfully interfere with the business advantage or contracts of
the Corporation, its successors, assigns, corporate parent, subsidiaries, and
affiliates. During and after the Term, the Corporation agrees that the CEO and
the Vice Presidents of the Corporation shall not make any defamatory or
disparaging comments about the Executive.
I. ACKNOWLEDGEMENT
By signing below, the Executive acknowledges that he has read the
foregoing Release; that he has had a right to consult an attorney, and has been
encouraged by BioReliance to review this Agreement with an attorney; that he has
been given a period of not less than twenty-one (21) days in which to consider
this Agreement; that he understands it; and that he accepts and agrees to all of
the provisions contained herein. The Executive understands that this Agreement
sets forth the entire understanding of the parties, and he acknowledges that he
has not relied upon any other representations or promises in entering into this
Agreement.
J. REVOCATION
This Agreement may be revoked by the Executive at any time during the
seven (7) days immediately following his execution of the Agreement, after which
time the Agreement shall be irrevocable and enforceable in any court of
competent jurisdiction. In the event that the Executive exercises his right to
revoke during the seven-day period, any sums previously paid pursuant to the
terms of this Agreement shall be returned to BioReliance.
K. PROFESSIONAL SERVICES
During the twelve (12) month period following the expiration of the
Term hereof, the Executive may provide such professional services to the
Corporation as agreed and set forth in a Professional Services Agreement. These
services will be for the purposes
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set forth in the Professional Services Agreement as well as for the purpose of
accomplishing a smooth transition of obligations from the Executive to the
Corporation's Vice President, Biosafety Testing Services, and for facilitating
the Corporation's development of its analytical services business.
L. SURVIVAL
Except for the terms and conditions set forth above in Section E, the
terms and conditions of this Agreement, including without limitation the terms
and conditions set forth above in Section H regarding Confidentiality, Trade
Secrets and Noncompetition, will remain in effect after the end of the Term.
M. ASSIGNABILITY
Except by will or by the laws of descent and distribution, neither this
Agreement nor any right or interest hereunder shall be assignable or
transferable by the Executive or by the Executive's beneficiaries or legal
representatives. This Agreement shall inure to the benefit of and be enforceable
by the Executive's legal personal representative.
N. GOVERNING LAW
This agreement shall be construed and governed by the laws of the State
of Maryland without regard to its choice of law provisions.
O. SEVERABILITY
The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
P. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the Corporation
and the Executive and supersedes all prior agreements, offers, terms or
conditions regarding the Executive's employment, except for the Confidentiality,
Trade Secrets and Noncompetition Agreement, which will survive.
Q. WAIVER
The Executive acknowledges, absent this Agreement, the Executive has no
right or entitlement to any severance payment and benefit, or to a separate
allowance in any particular amount. For the consideration set forth in Section E
(ii) and (iii) and Section F hereof, the adequacy of which is hereby
acknowledged, except for breach of this Agreement by the Corporation, the
Executive hereby remises, releases and forever discharges and quitclaims onto
the Corporation and its officers, directors, shareholders, employees, agents and
representatives of and from any and all debts, actions, causes of
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action, suits, accounts, covenants, contracts, agreements, damages, and any and
all claims, demands and liabilities whatsoever of every name and nature, both in
Law and in Equity (collectively referred to therein as "Claims"), which the
Executive now has or ever had from the beginning of time.
R. NO CONFLICTS OF INTEREST
By signing this Agreement, the Executive represents that he is not
subject to any restrictions, particularly, but without limitation, in connection
with any previous employment, which prevents the Executive from entering into
and performing his obligations under this Agreement or which materially and
adversely affect (or may in the future, so far as the Executive can reasonably
foresee, materially and adversely affect), the Executive's right to participate
in the affairs of the Corporation.
S. ARBITRATION
Any claim or controversy relating to or arising out of this Agreement
shall be resolved exclusively by arbitration in accordance with the commercial
rules then obtaining of the American Arbitration Association. The arbitration
shall take place in Xxxxxxxxxx County, Maryland.
T. PROOF OF CITIZENSHIP AND ABILITY TO WORK
This Agreement is contingent on the Executive providing the
Corporation, if not previously provided, with proof of U.S. citizenship or alien
work permission, as required by federal law.
BioReliance Corporation
By: s/Capers X. XxXxxxxx By: s/Xxxx X. XxXxxxxx
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Name: Capers X. XxXxxxxx Name: Xxxx X. XxXxxxxx
Title: President and CEO
Date: December 2, 1999 Date: December 14, 1999
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